The operative facts are not in
dispute. Defendant gave notice to affected property owners that it would
"hold a public hearing during its regular City Council meeting on October
19, 2005, on the proposal by the Bend Downtowners Association [(the
Downtowners)] for the City to create an Economic Improvement District (EID)
within the Downtown core as reflected on the attached map." After that
hearing, on November 2, 2005, defendant adopted Ordinance NS-1985 (the
ordinance). Five aspects of the ordinance are pertinent to the issues on
appeal.

First, the ordinance created
the EID. Specifically, the ordinance provided:

"The City Council of Bend hereby approves and creates
the 'Bend Downtown Economic Improvement District' for the purpose of promoting
within said district economic improvements by planning and/or management of
development or improvement activities; by landscaping or other maintenance of
the public areas; by promotion of commercial activity or public events; by
activities in support of business expansion, and development; and by
improvements in parking systems or parking enforcement including but not
limited to the provision of private security services for the District."

The ordinance limited the duration of the EID to three
consecutive years beginning January 2006, unless extended in accordance with
the requirement of the pertinent statutes.

Second, the ordinance
subjected all commercial properties within the EID's boundaries to an
assessment of "$0.11 per square foot per year of real property." The
annual assessments were "expected to be approximately $100,000.00,"
which the city council found was the "probable cost" of the funded
activities.

Third, the ordinance
established the specific boundaries of the EID and the general standards
governing assessments. The city council's findings in the ordinance explained
that (1) "[t]he area within the boundaries of the proposed district is
zoned commercial"; (2) "[n]o residential real property or any portion
of a structure used primarily for residential purposes will be assessed";
and (3) "[t]he rate to be assessed each benefited and assessed property is
in proportion to the benefit" that the property may derive from the EID.

Fourth, the ordinance
established the procedure for assessing affected property owners and for
challenges to assessments. Specifically, the ordinance provided:

"(a) The City Clerk shall promptly mail to
property owners within the boundaries of the [EID], a notice identifying the
amount of the proposed assessment for each property, and informing the property
owner of a meeting scheduled for December 7, 2005, at which the property owners
may appear to submit written objections to the assessment.

"(b) The City Council will consider the
objections and may adopt, correct, modify or revise the proposed assessment.
The Council will not impose the assessment if written remonstrances are
received at the public hearing from owners of property upon which more than 33
percent of the total amount of assessment is imposed.

"(c) After the December 7 hearing, if the
Council decides to impose the assessment, it shall impose the assessment by
resolution, determine whether the properties within the district shall bear all
or a portion of the costs of the activities to be funded, and approve the
amount of assessment on each lot."

Fifth, the ordinance required
that defendant "shall enter into an agreement with the [Downtowners], for
the Downtowners to administer the EID funds, provide for public meetings,
budget adoption and consideration at open publicly noticed meetings,
limitations on expenditures and other appropriate matters."

Consistently with the ordinance,
defendant sent notices to affected property owners, including plaintiffs,
concerning the December 7 hearing. Those notices indicated that "[t]he
purpose of the second hearing is to allow property owners to file written
remonstrances (also referred to as objections) with the City regarding their
proposed assessment."

Thereafter, in February 2006,
plaintiffs filed a complaint against defendant, seeking declaratory and
injunctive relief. In general terms, that complaint alleged that the ordinance
failed to comply with the pertinent statutes governing EIDs, ORS 223.112 to
223.132, in several particulars. More specifically, plaintiffs alleged that
the ordinance failed to sufficiently describe the boundaries of the EID; that
the ordinance failed to sufficiently describe the "particular or specific
economic improvement to be developed or performed"; that the ordinance
perpetrated an unlawful delegation of governmental functions to the
Downtowners; and that the ordinance "arbitrarily purports to assess all
real property within the district at 11 cents per square foot per year, without
identifying any economic improvement, or the cost of any economic improvement,
or determining any special benefit to any property, and without any formula for
apportioning the cost to such specially benefitted property." Ultimately,
plaintiffs requested that

Defendant moved to dismiss the case,
contending that defendant's creation of the EID could be challenged only by
seeking a writ of review within 60 days from the date of the decision. See
ORS 34.010 - 34.102 (providing generally for a writ of review as the exclusive
remedy to challenge quasi-judicial decisions). According to defendant, because
plaintiffs filed an action seeking declaratory and injunctive relief and did
not seek to challenge the creation of the EID through the writ of review
process within 60 days of the date of the decision, the trial court lacked
subject matter jurisdiction.

The trial court granted in part the
motion to dismiss. The court determined that "the City of Bend's
decisions pertaining to the physical boundaries of the EID and the calculation
of individual assessments were quasi judicial decisions" and dismissed
"all allegations in Plaintiffs' complaint pertaining to quasi judicial
decisions of the City of Bend." Conversely, the court denied defendant's
motion to dismiss "to the extent that it pertains to legislative decisions
of the City in connection with the [EID]." Accordingly, the court ordered
plaintiffs to file an amended complaint omitting allegations pertaining to
defendant's quasi-judicial decisions.

"A. ORS 223.117(1)(a) directs that the
Ordinance must '[describe] the economic improvement project to be undertaken or
constructed.' * * * Contrary to this statutory requirement, the Ordinance fails
to describe a particular economic improvement project. Instead, the Ordinance
simply recites the generic list of potential economic improvements comprising
the definition of 'economic improvement' set forth in ORS 223.112(2), and
states that the EID is created for the purpose of promoting some or all of
these improvements.

"* * * * *

"C. ORS 223.117(2)([b]) states that an
ordinance creating an Economic Improvement District shall '[r]equire the city
recorder or other person designated by the city council to prepare the proposed
assessment for each lot in the district and file it in the appropriate city
office.' The Ordinance fails to contain this requirement."

(Emphasis omitted; first and third brackets in original.)

Plaintiffs and defendant filed
cross-motions for summary judgment that raised the same legal issue--viz.,
whether defendant's ordinance satisfied the statutory requisites of ORS 223.117
such that it was a valid enactment. Plaintiffs asserted that, "when state
law imposes specific, mandatory requirements for the enactment of local
legislation, those requirements must be satisfied" and, thus, because
defendant did not strictly comply with the statutory requisites of ORS 223.117,
including ORS 223.117(1)(a) and (2)(b), the ordinance was invalid. Plaintiffs
further contended that, because the ordinance was invalid, it followed that "the
Resolution is also invalid, and the City has no authority to levy or collect
assessments for the benefit of the [EID]."

Defendant, on the other hand, asserted
that the ordinance was valid. In that regard, defendant noted that
"Oregon Cities have 'home rule' powers under the Oregon Constitution"
and posited that, "[i]n order for an ordinance to be invalid, in light of
a city's home rule authority, the ordinance must actually contravene a state
statute, or substantially interfere with state legislation in an area where the
state has indicated an intention to preclude municipal legislation on the same
subject." Here, defendant contended that "the complaint fails to
allege that the ordinance is inconsistent with state law in any material
respect," and, thus, because there was at least substantial compliance
with the requisites of ORS 223.117, the ordinance was valid.

The trial court granted plaintiffs'
motion for summary judgment and denied defendant's cross-motion. The court
assumed that "strict compliance is not required, even for taxation or
assessment ordinances" and reasoned that "the court will determine if
the City even substantially complied with the statutory procedures to create an
EID and impose assessments." The court ultimately determined that the
ordinance did not satisfy even the "substantial compliance" standard,
because it did not describe the economic improvement project as required by ORS
223.117(1)(a). In that regard, the court reasoned that,

"most fundamentally, the ordinance provides absolutely
no notice to affected landowners of what the City proposes to assess them for.
Because there is no explanation of how the assessment will be used, the
property owners cannot evaluate whether the 'project(s)' are necessary or
unnecessary, beneficial to their property or not, or even harmful, and whether
the estimated cost is reasonable for the expected return. Clearly the
statutory requirement for specificity is basic to the function of giving
notice."

The trial court further noted that several of plaintiffs'
other allegations had merit because they were "closely related" to
defendant's failure to describe the economic improvement project and that
several of plaintiffs' "[o]ther claims of procedural irregularity[,
including plaintiffs' allegation that the ordinance violated ORS
223.117(2)(b),] are without merit because the City substantially met the requirements
of the statutes." In sum, the court stated that its determination
concerning the failure to comply with ORS 223.117(1)(a) was
"dispositive" and that "[n]o further discussion of plaintiffs'
other claims is necessary."

Accordingly, the court entered a
general judgment that provides, in part, as follows:

"1. City of Bend Ordinance NS-1985 is
declared null, void and unenforceable;

"2. City of Bend Resolution No. 2546
is declared null, void and unenforceable;

"3. The City of Bend is permanently
enjoined from attempting to levy or collect any assessment under Ordinance
NS-1985 or Resolution No. 2546[.]"

Defendant appealed.

On appeal, defendant raises two
assignments of error. First, defendant contends that the trial court erred in
denying its motion to dismiss for lack of jurisdiction because "writ of
review is the exclusive avenue to challenge a special improvement district
where the formation is a quasi judicial function of the city council."
Second, defendant asserts that the trial court erred in granting plaintiffs'
motion for summary judgment and denying its cross-motion, because the ordinance
either completely or substantially complied with the requirements of ORS
223.117.

Plaintiffs remonstrate that the
creation of the district was a legislative act and, thus, that they were
entitled to challenge the validity of the ordinance in a declaratory judgment
proceeding. With respect to the second assignment of error pertaining to the
disposition on summary judgment, plaintiffs contend that, regardless of
defendant's home rule authority, defendant was required to strictly comply with
the pertinent statutory requirements. For that reason, the ordinance in this
case was invalid either because, as the trial court concluded, defendant did
not satisfy ORS 223.117(1)(a) (the requirement that the assessment ordinance
contain a description of the economic improvement project) or because defendant
did not satisfy ORS 223.117(2)(b) (the requirement that the city recorder or
other designated individual prepare the assessments and file them in the
appropriate city office).

Before addressing and resolving the
parties' particular contentions, it is useful to place them in statutory
context. ORS 223.114 and ORS 223.117, the statutes concerning the procedure
for imposing assessments on property owners for the cost of an improvement
project, are most pertinent.

ORS 223.114(1) provides that
"[a] council may enact an ordinance establishing a procedure to be
followed by the city in making assessments for the cost of an economic
improvement upon the lots which are specially benefited by all or part of the
improvement." See also ORS 223.114(2) (providing, inter alia,
that a city is not authorized to "[i]nclude within an economic improvement
district any area * * * that is not zoned for commercial or industrial
use" or "[l]evy assessments on residential real property or any
portion of a structure used for residential purposes").

ORS 223.117(1) requires that an
"assessment ordinance" include certain information and procedures.
That statute provides:

"(1) An ordinance adopted under ORS
223.114, shall provide for enactment of an assessment ordinance that:

"(a) Describes the economic improvement
project to be undertaken or constructed.

"(b) Contains a preliminary estimate of
the probable cost of the economic improvement and the proposed formula for
apportioning cost to specially benefited property.

"(c) Describes the boundaries of the
district in which property will be assessed.

"(d) Specifies the number of years, to a
maximum of five, in which assessments will be levied.

"(e) Contains provision for notices to be
mailed or delivered personally to affected property owners that announce the
intention of the council to construct or undertake the economic improvement
project and to assess benefited property for a part or all of the cost. The
notice shall state the time and place of the public hearing required under
paragraph (f) of this subsection.

"(f) Provides for a hearing not sooner
than 30 days after the mailing or delivery of notices to affected property
owners at which the owners may appear to support or object to the proposed improvement
and assessment.

"(2) The ordinance shall also:

"(a) Provide that if, after the hearing
held under subsection (1)(f) of this section, the council determines that the
economic improvement shall be made, the council shall determine whether the
property benefited shall bear all or a portion of the cost and shall determine,
based on the actual or estimated cost of the economic improvement, the amount
of assessment on each lot in the district.

"(b) Require the city recorder or other
person designated by the council to prepare the proposed assessment for each
lot in the district and file it in the appropriate city office.

"(c) Require notice of such proposed
assessment to be mailed or personally delivered to the owner of each lot to be
assessed, which notice shall state the amount of the assessment proposed on the
property of the owner receiving the notice. The notice shall state the time
and place of a public hearing at which affected property owners may appear to
support or object to the proposed assessment. The hearing shall not be held
sooner than 30 days after the mailing or personal delivery of the notices.

"(d) Provide that the council shall
consider such objections and may adopt, correct, modify or revise the proposed
assessments.

"(e) Provide that the assessments will not
be made and the economic improvement project terminated when written objections
are received at the public hearing from owners of property upon which more than
33 percent of the total amount of assessments is levied."

Against that statutory backdrop, we
consider the first assignment of error, viz., that the trial court erred
in denying defendant's motion to dismiss plaintiffs' declaratory judgment
action for lack of jurisdiction because a writ of review was plaintiffs'
exclusive remedy. See generallyParker v. City of Albany, 208 Or
App 296, 298, 144 P3d 976 (2006) (providing that we review the trial court's
jurisdictional determination for errors of law). As support for its position,
defendant invokes State ex rel City of Powers v. Coos County Airport,
201 Or App 222, 228-29, 119 P3d 225 (2005), rev den, 341 Or 197 (2006).
Defendant particularly emphasizes our observations in Coos County Airport
that, (1) "although a trial court has broad power to provide declaratory
relief, it lacks subject matter jurisdiction under ORS 28.010 if some other exclusiveremedy exists"; and (2) "when the writ of review is available, it
is the exclusive remedy and * * * a court lacks jurisdiction over a declaratory
judgment action that seeks review of governmental actions that are subject to
review by writ of review." 201 Or App at 228-29, 230 (internal quotation
marks, bracketed material, and emphasis omitted).

The striking point of our
jurisdictional analysis here, as in Coos County Airport, is ORS 34.102.
That statute provides, in part, that

"the decisions of the governing body of a municipal
corporation acting in a judicial or quasi-judicial capacity and made in the
transaction of municipal corporation business shall be reviewed only as
provided in ORS 34.010 to 34.100[, the statutes governing writs of review,] and
not otherwise."

Thus, in determining whether the exclusive jurisdiction
prescribed in ORS 34.102 precludes a declaratory judgment action, the court
must first identify the challenged "decision" and then determine
whether, in making that decision, the governing body was acting in a
"quasi-judicial capacity." Consequently, the identification of the
operative "decision" and its content circumscribes the jurisdictional
inquiry and may determine its outcome.

Hood River Valley v. Board of Cty.
Commissioners, 193 Or App 485, 91 P3d 748 (2004), frames that inquiry.
There, relying on the Supreme Court's analysis in Strawberry Hill 4 Wheelers
v. Benton Co. Bd. of Comm., 287 Or 591, 601 P2d 769 (1979) (Strawberry
Hill), we described the considerations that bear on whether a governmental
action represented an exercise of its quasi-judicial functions. Noting that a
policymaking process does not become an adjudicatory process simply because it
is circumscribed by procedural requirements such as public hearings, we
explained that

"at least three other considerations generally bear on
the determination of whether governmental action represented an 'exercise of *
* * quasi-judicial functions.' ORS 34.040(1). First, does 'the process, once
begun, [call] for reaching a decision,' with that decision being confined by
preexisting criteria rather than a wide discretionary choice of action or
inaction? [Strawberry Hill], 287 Or at 604. Second, to what extent is
the decision-maker 'bound to apply preexisting criteria to concrete facts'? Id.
at 602-03. Third, to what extent is the decision 'directed at a closely
circumscribed factual situation or a relatively small number of persons'? Id.
at 603."

Hood River Valley, 193 Or App at 495 (omission and first
brackets in Hood River Valley).

Further, and critically, as we
explained in Babcock v. Sherwood School District 88J, 193 Or App 449,
453, 90 P3d 1036, rev den, 337 Or 556 (2004), the Strawberry Hill formulation
"was never intended to serve as a complete, all-purpose list of 'elements,'
all of which must be present in order to label an action quasi-adjudication * *
*." Rather,

"the traits are manifestations of the fundamental,
structural difference between what courts do and what legislative bodies do.
Generally, courts are institutions empowered to deploy processes like
evidentiary hearings and cross-examination in order disinterestedly and
rationally to solve concrete disputes between parties as to whether and how
particular events did or did not occur and whether they amount to
transgressions of preexisting legal norms. Their decisions attain legitimacy
by demonstrating a rational connection among the norms, the evidence on the
record, and the outcome. Once presented with a justiciable controversy, courts
are not free to ignore it; the parties cannot be told to go away because the
judges would prefer to devote their energy and resources to more (or less)
pressing problems. Legislative bodies, on the other hand, choose from among
competing policy preferences. They are not bound to any record. They are held
accountable not by the constraints of logic or rules of evidence, but by
politics, and a legislature is never required to make a decision."

The first consideration is whether
"the process, once begun, calls for reaching a decision," with that
decision being confined to preexisting criteria rather than allowing for the "discretionary
choice of action or inaction." Strawberry Hill, 287 Or at 604.
Here, the process that culminated in the enactment of the ordinance, embodying
the decisions to create the EID and to adopt criteria and procedures for
imposing assessments, was discretionary--not mandatory or circumscribed by
preexisting criteria. Until it enacted the ordinance, defendant retained an
unconstrained legislative range of "choice of action or inaction." Id.See generally Stanley v. City of Salem, 247 Or 60, 64, 427 P2d 406
(1967) ("The power to determine that an improvement is to be made and that
a tax will be imposed to pay for the improvement is strictly legislative, i.e.,
for the city council.").

Specifically, in this case, it
appears that the Downtowners requested that defendant create the EID and that
defendant had complete discretion concerning whether to proceed with the
proposal. We are aware of no duty that required defendant, once it received
the request from the association, to create the EID or establish the procedure
for imposing assessments on affected property owners. In that respect, this
case is materially distinguishable from Hood RiverValley and Coos
County Airport.

In Hood River Valley, for
example, the county entered into a preliminary agreement with Mt. Hood Meadows
to exchange property. According to the agreement, the exchange was subject to
the satisfaction of certain conditions, including compliance with ORS 275.335,
the statute governing particular types of land exchanges. We held that,
although "the county was not required to enter into the initial agreement
with Mt. Hood Meadows, once it did so, it was ultimately bound to reach a
decision as to whether the contractual and statutory conditions for the
exchange had been satisfied and, thus, whether the exchange should actually be
consummated." Hood River Valley, 193 Or App at 497.

Similarly, in Coos County Airport,
the city of North Bend passed a resolution that called for the formation of an
airport district to fund the operation of its airport and filed that resolution
with the county. We held that, once the city presented its resolution to the
county, under the pertinent statutory scheme, "the county lacked the
option of taking no action at all on North Bend's request to form the airport
district." Coos County Airport, 201 Or App at 239.

Again, here, in dispositive contrast
to Hood River Valley and Coos County Airport, defendant has not
identified any agreement or statute that required it to create the district and
establish the criteria and procedures for imposing assessments once it received
the request from the Downtowners. Again, in further contrast to those cases,
until it enacted the ordinance, defendant here retained the unconstrained
legislative range of "choice of action or inaction." Strawberry
Hill, 287 Or at 604.

The second consideration concerns the
extent to which the decision-maker is "bound to apply preexisting criteria
to concrete facts." Strawberry Hill, 287 Orat 602-03. In
that regard, defendant argues that "[t]he criteria are set forth in ORS
223.112 through 223.118. [Defendant] was bound to follow these criteria, and
indeed, it did so, making findings of fact regarding the criteria at each step
of the process."

Defendant is correct that those
statutes generally, and ORS 223.117 specifically, require that an
"assessment ordinance" include particular types of
information. However, there is a qualitative difference between enacting an
ordinance that includes statutorily prescribed provisions and applying
preexisting criteria to particular circumstances, akin to judicial factfinding.
Indeed, in enacting the ordinance, defendant was engaged in a process to
establish the general criteria that it could eventually apply in levying
assessments--a process that would, in fact, involve the application of those
criteria to the concrete factual circumstances of individual property
owners--at a later time.

The third, and final, consideration
in determining whether a decision is quasi-judicial in nature concerns the
extent to which the decision is "directed at a closely circumscribed
factual situation or a relatively small number of persons." Strawberry
Hill, 287 Or at 603. Defendant contends that this consideration is
self-evidently present here because "[t]he district was limited to the
downtown area, thus satisfying the requirement that the district be directed to
only those properties within the boundaries established by [the ordinance] and [resolution]."

Defendant is correct--but only to a
point. Although the primary benefit of the establishment of the EID may well
inure to owners of nonresidential properties and business proprietors within
the district, it is by no means self-evident that those are the only persons
who will be affected by the decision; indeed, that decision may well
pervasively, albeit collaterally, affect the citizens of Bend as a whole. Cf.Stanley, 247 Or at 65 (noting that the fact that an improvement benefits
the public generally "does not of itself overcome the presumption that the
council was correct in determining that the adjoining property was specially
benefited"). In all events, as we reiterated in Coos County Airport,
the number of people affected and the size of the area affected are "less
important" than the other Strawberry Hill considerations. 201 Or
App at 241 (internal quotation marks omitted).

We return then to the fundamental
inquiry: Bearing in mind "the fundamental, structural difference between
what courts do and what legislative bodies do," Babcock, 193 Or App
at 453, were defendant's decisions to form the EID and to prescribe general
procedures and criteria for the imposition and challenging of individual
assessments quasi-judicial or legislative in character? Although at least one
consideration, viz., the relatively small number of persons directly
affected by the decision, militates in favor of a quasi-judicial
characterization, on balance we conclude that defendant's operative decisions
were legislative. Those decisions to form the EID and to establish general
criteria and procedures did not ultimately implicate the safeguards that
underlie adjudicatory processes--that is, "to help assure that the
decision is correct as to facts" and "to help assure fair attention
to individuals particularly affected." Strawberry Hill, 287 Or at
603. Accordingly, plaintiffs properly asserted their challenge to the
ordinance in a declaratory judgment action rather than by writ of review.

Specifically, as noted--and unlike in
Coos County Airport and Hood River Valley--there is no indication
here that the pertinent statutes or any other agreement required defendant, on
petition or application, to create the EID and to establish criteria and
procedures for imposing assessments. Further, those decisions, pertaining to
the formation and overarching funding process for the EID, were not the product
of some particularized application of preexisting criteria to concrete facts;
rather, as we have explained, the ordinance embodied generalized policy-driven
determinations. Bluntly: Although the ensuing resolution fixing and imposing
individual assessments on the specific properties was quasi-judicial in
character, the decisions underlying and embodied in the predicate ordinance
were innately legislative.

We proceed to the second assignment
of error, which challenges the trial court's allowance of plaintiffs' motion
for summary judgment and its concomitant denial of defendant's cross-motion.
As noted, see ___ Or App at ___ (slip op at 8), the trial court granted
summary judgment on the ground that defendant had failed to comply with ORS
223.117(1)(a) because the ordinance did not sufficiently describe "the
economic improvement project to be undertaken or constructed."
(Emphasis added.) On appeal, defendant's arguments focus on the trial court's
definition of the word "project": First, defendant contends
that, by defining the word "project" such that the ordinance in this
case failed to satisfy ORS 223.117(1)(a), the trial court disregarded the
presumptions of validity that attach to municipal ordinances. See generally
Eugene McQuillin, The Law of Municipal Corporations (3d ed 2007). Second,
defendant contends that, in declaring the ordinance invalid based on its
failure to satisfy ORS 223.117(1)(a), the court disregarded defendant's
additional authority, apart from the statutes governing EIDs, to create and
finance those districts. See ORS 223.132 (providing that "[t]he
authority granted to cities by ORS 223.112 to 223.132, is in addition to any
other authority a city may have under state law, its charter or its ordinances
to create or finance economic improvement districts"). See also Or
Const, Art XI, § 2 (concerning home rule authority); Or Const, Art IV, §1(5)
(same).

Plaintiffs defend the merits of the
trial court's ruling, and also advance an alternative basis for affirmance.
Specifically, plaintiffs contend that the ordinance completely failed to
comport with ORS 223.117(2)(b). See generallyOutdoor Media
Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001)
(discussing "right for the wrong reason" principle for affirming
trial court's ruling).

"Because an EID is a self taxing district,
it is only natural that the city would cooperate with the association of
affected property owners in its creation. The question in this case is: Did
the city act in substantial compliance with the relevant statutes in
creating the EID? The answer is that it did."

(Emphasis added.)

We do not address defendant's
challenge to the trial court's grounds for allowing summary judgment--and, specifically,
we do not resolve whether, as a matter of law, the ordinance was invalid
because it failed to comply with ORS 223.117(1)(a), which required that the
ordinance describe "the economic improvement project to be undertaken or
constructed." Instead, we affirm on the alternative basis that the
ordinance was invalid because, regardless of any compliance with ORS
223.117(1)(a), it completely failed to comply with the requirements of ORS
223.117(2)(b). SeeParthenon Construction & Design, Inc. v. Neuman,
166 Or App 172, 181, 999 P2d 1169 (2000) (reasoning that "[n]oncompliance
is not 'substantial compliance'").

ORS 223.117(2)(b) requires that the
"assessment ordinance" shall

"[r]equire the city recorder or other
person designated by the council to prepare the proposed assessment for
each lot in the district and file it in the appropriate city office."

(Emphasis added.) The ordinance, in turn, stated, in
pertinent part, that

"[t]he City Clerk shall promptly mail to property
owners within the boundaries of the [EID], a notice identifying the amount of
the proposed assessment for each property, and informing the property owner of
a meeting scheduled for December 7, 2005, at which the property owners may
appear to submit written objections to the assessment."

3.Plaintiffs'
assertion that the resolution, as well as the ordinance, was "null, void
and unenforceable" was entirely derivative of their challenge to the
validity of the predicate ordinance. That is, plaintiffs did not assert that,
even if the ordinance complied with the statutory requirements, the resolution
was somehow independently invalid and unenforceable.

4.Plaintiffs
also alleged that "the ordinance and assessments constitute an unlawful
taking of property without just compensation, in violation of the Oregon and
United States Constitutions." The trial court dismissed that allegation
as being "without merit." The trial court's determination in that
regard is not at issue on appeal.

5.The
text of ORS 223.114 and ORS 223.117 could be understood to require that a city
council enact more than one ordinance--that is, (1) an ordinance under ORS
223.114 that establishes the procedure to be followed in making assessments
and, in doing so, provides for the enactment of an "assessment
ordinance" and (2) a separate "assessment ordinance," which must
satisfy the requisites of ORS 223.117. However, as a matter of text and
statutory context, ORS 223.114 and ORS 223.117 could also be understood to
require the enactment of a single "assessment ordinance" that
explains the procedures that the city will follow in making assessments. See
ORS 223.118(1) (referring to "an assessment ordinance adopted under ORS
223.114 and 223.117" (emphasis added)). Compare ORS 223.129
(indicating that a city shall not expend moneys derived from assessments
"for any purpose different from the purpose described in the ordinance
adopted under ORS 223.114" (emphasis added)), with ORS
223.114 (which does not refer to a description of the purpose of an economic
improvement), and ORS 223.117(1)(a) (providing that an "assessment
ordinance" describe the "economic improvement project to be
undertaken or constructed").

We need not resolve that question in this case
because plaintiffs never contended that defendant had violated statutory
requirements by enacting one ordinance rather than two separate ordinances.
Indeed, on appeal the parties do not dispute that a single ordinance could
satisfy the requirements of both ORS 223.114 and ORS 223.117. Rather, their
sole contention has been that the ordinance here did not satisfy the
requirements of ORS 223.117.

6.The
enactment of general criteria and procedures for imposing assessments is
distinct from the individualized application of those criteria and procedures
with respect to individual properties. As noted, in response to defendant's
motion to dismiss, the trial court dismissed plaintiffs' allegations (in their
original complaint) challenging "decisions pertaining to * * * the
calculation of individual assessments." See ___ Or App at ___
(slip op at 6). Plaintiffs have not challenged that partial dismissal.

7.Although
ORS 223.117 requires that an assessment ordinance provide for notice and public
hearings, as we noted in Hood River Valley, a policy-making process does
not become an adjudicatory process simply because it is circumscribed by
procedural requirements such as public hearings. For that reason, the focus of
our analysis is on the three considerations that we identified in Hood River
Valley as generally bearing on the determination whether a decision is
quasi-judicial in nature. See alsoCoos County Airport, 201 Or
App at 238-39 ("'[N]othing prevents a law or charter from imposing
detailed procedural safeguards such as notice, prior inquiries and reports, and
public hearings on a process of legislative policymaking.'" (Quoting
Strawberry Hill, 287 Or at 604.) (Emphasis in Coos County.)).

8.Defendant
relies on School District No. 3J v. City of Wilsonville, 87 Or App 246,
742 P2d 59, rev den, 304 Or 548 (1987), as illustrative in support of
its contention that "there are quasi judicial actions that are fundamental
to the creation of a special improvement district, so that it is not 'purely'
legislative." That reliance is unavailing.

In School District No. 3J, a case in which
ORS 223.401 and ORS 34.040 provided for a remedy by writ of review, we held
that "the process of determining [local improvement district] boundaries
is sufficiently related to the process of determining which properties have
benefited from an improvement to justify its characterization as quasi-judicial
and to subject it to review by writ of review." 87 Or App at 250. School
District No. 3J is inapposite for two reasons. First, as we explain below
in footnote 9, ORS 223.401 does not apply in these circumstances. Second,
unlike in School District No. 3J, no issue is presented here concerning
defendant's determination of the EID's boundaries.

9.We
also reject, without extended discussion, defendant's alternative argument
that, under ORS 223.401, writ of review is the exclusive process for
challenging the creation of an EID. That statute, which concerns local
improvements, provides: "Notwithstanding [other statutes governing
assessments for local improvements], owners of any property against which an
assessment for local improvements has been imposed may seek a review thereof
under the provisions of ORS 34.010 to 34.100." That statute and the cases
concerning the review of a city's decisions involving local improvement
districts, see, e.g., McKenney v. Lake Oswego, 30 Or App 913, 569
P2d 27 (1977), rev den, 281 Or 1 (1978), are inapplicable to this case
involving an economic improvement district because, although the legislature
has provided that certain statutes related to local improvements apply to
economic improvement districts, ORS 223.401 is not included among those statutes.
See ORS 223.127(1) (providing that "ORS 223.387 and 223.391 to
223.395 apply to economic improvement districts created by a city in accordance
with ORS 223.112 to 223.132"). In all events, ORS 223.401 applies to
review of an imposed assessment and not to the creation of a local district.

"An ordinance adopted under ORS 223.114,
may require creation, for each economic improvement district, of an advisory
committee to allocate expenditure of moneys for economic improvement activities
within the scope of ORS 223.112 to 223.132. If an advisory committee is
created, the council shall strongly consider appointment of owners of property
within the economic improvement district to the advisory committee. An
existing association of property owners or tenants may enter into an agreement
with the city to provide the proposed economic improvement."